Enforcing the Arbitral Award

How should we enforce the July 12, 2016 Arbitral Award (AA) vis-à-vis China’s intractable claim of ownership and sovereignty over almost the entire South China Sea (SCS) including our exclusive economic zone (EEZ)?

My short answer: Stick to the rule of law. As a professor of public international law for many years in the 1960s, I always taught that poor and weak states like ours can vie with wealthy and powerful countries only by a reliance on the might of being right, on a steadfast invocation of the rule of law.

The Charter of the United Nations (UN) obligates its members to “settle their international disputes by peaceful means” (Art. 2, par. 3) “…by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” (Art. 33, par. 1).

Our country has tried all these modes, except “judicial settlement” by the International Court of Justice (ICJ), the “principal judicial organ” of the UN. True, we have resorted to arbitration. But ICJ settlement is different from arbitration.

The ICJ is permanent body; its judges have a secure tenure of nine years, while arbitration is conducted by an ad hoc group (that dissolves after the final arbitral award is issued) with ad hoc members (that serve only for a specific dispute).

Moreover, the AA ruled only on our sovereign rights over our maritime domain, not on ownership or sovereignty over the “rocks” or High-Tide Elevations (HTEs) within such domain. This is why China maintains that the Arbitral Tribunal did not have jurisdiction because, inter alia, the dispute allegedly covered territorial (not maritime) disputes.

Though the ICJ is governed by a “Statute” separate from the UN Charter, all UN members are ipso facto ICJ members. ICJ judges are elected by the UN General Assembly and the Security Council, voting separately, from a list nominated by the national groups in the Permanent Court of Arbitration (PCA).

Last year, the Philippine National Group in the PCA (composed of then International Criminal Court Judge Raul Pangalangan, retired CJ Reynato Puno, retired Justice Jose Vitug, and yours truly as chair) nominated Judge Yuji Iwasawa of Japan, who won an ICJ seat on Nov. 12, 2020. The late CJ Cesar Bengzon is the only Filipino who served (in the late 1960s) as an ICJ judge.

Forcible modes like boycott, blockade, embargo, severance of diplomatic relations, and armed encounters have been suggested, but I think winning with those methods is extremely difficult.

Thus, I have proposed several times in this space that while we continue availing of the other peaceful methods under the UN Charter, we should simultaneously resort to the ICJ. In response, the esteemed Justice Secretary Menardo I. Guevarra (who, to my delight, always comments on my columns) texted me, “Is there any chance at all that if the matter is brought to the ICJ, any part of the AA may be reopened?”

My answer: “I don’t think so if we were to craft a good petition. We already won the maritime rights granted by Unclos. We should not re-litigate them. China will probably have the opposite view because it does not recognize the AA… how to get China to the ICJ is quite tough.”

As the world’s second largest economy (and soon, the first) with the biggest army and a huge nuclear arsenal, China will not readily give up its preferred mode of one-on-one negotiation where it enjoys absolute superiority, and agree to litigate as an equal in the ICJ.

The recent proposal of retired Justice Francis H. Jardeleza, et al., to identify “by name and coordinates at least 100 features being claimed and occupied by the Philippines,” will help in proving in the ICJ our territorial title to 35 HTEs in our maritime domain. For now, however, I expect China to ignore this proposal and to insist on its old “nine-dash line” tune.

China had publicly declared that only the ICJ has the jurisdiction to settle our EEZ claims since, to repeat, the claims allegedly involve territorial disputes, but I do not expect China to allow us easy access to the ICJ. It knows that under the ICJ Statute, the ICJ will acquire such jurisdiction only with the consent of China!

Given these difficulties, I proposed to Sec. Guevarra to form a team of international jurisconsults, headed by him and Foreign Secretary Teodoro Locsin Jr., to study how these difficulties can be solved. I will detail my humble suggestions in a future column.

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